Trade Union Bill

Written evidence submitted by Thompsons Solicitors LLP (TUB 22)

1.Introduction

1.1 Thompsons Solicitors LLP is the largest and most experienced firm of employment and trade union solicitors in the United Kingdom, with 26 offices in Great Britain and Northern Ireland. We have advised and represented trade unions in almost all major industrial disputes in the last decade, including in domestic and international courts. We regularly advise trade unions in relation to their political funds, and advise and represent them in matters within the Certification Officer’s jurisdiction.

1.2 We, and the trade unions we represent, have the most fundamental objections of principle to the contents of the Trade Union Bill (and the three associated consultations also announced by BIS on 15 July 2015) which we see as an unwarranted ideological attack on the internationally recognised rights of trade unions in this country. We endorse the joint statement of 7 September from Liberty, Amnesty International and the British Institute for Human Rights. As the joint statement says ‘…Taken together the unprecedented measures in the Bill would hamper people’s basic rights to protest and shift even more power from the employee to the employer….It is hard to see the aim of the Bill as anything but seeking to undermine the rights of all working people’.

1.3 We do not believe that our evidence to this Committee is the appropriate place to set out all of those objections. Instead, we confine our evidence to why, in our view, the provisions currently contained in the Bill are unlawful, unworkable and/or oppressive. However, nothing we say in this evidence is intended to detract from our fundamental objections in principle to the contents of the Bill.

2.Internationally recognised trade union rights

2.1 Trade union rights and freedoms are protected by an array of international treaties which have been ratified by, and are binding on, the United Kingdom. These include Convention Nos. 87 (on freedom of association and protection of the right to organise), 98 (on the right to organise and collective bargaining) and 151 (the Labour Relations (Public Service) Convention) of the International Labour Organisation (‘ILO’), a tripartite agency of the United Nations, and the European Social Charter.

2.2 The supervisory bodies of those international legal instruments have consistently condemned the United Kingdom’s trade union laws as violating the international standards set by those instruments. In its report concerning the United Kingdom published in January 2015, the European Committee of Social Rights concluded that ‘the situation is not in conformity with Article 6(4) of the 1961 Charter on the grounds that…..the possibilities for workers to defend their interests through collective action are excessively limited; the requirement to give notice to an employer of a ballot on industrial action is excessive; and the protection of workers against dismissal is insufficient’
[1]
.

2.3 Trade union rights and freedoms are also protected by the European Convention for the Protection of Human Rights and Fundamental Freedoms (the ‘European Convention’) and the Human Rights Act. The protections under the European Convention include Article 11 (freedom of association) as well as Article 6 (right to a fair trial, which is engaged by the changes to the Certification Officer’s role), Article 10 (freedom of expression, which is engaged in relation to picketing and protests, and rules concerning unions’ political funds), Article 14 (protection against discrimination, including on grounds of public sector or trade union status) and Article 1 Protocol 1 (protection of property). Protection is also provided by Articles 12 and 28 of the Charter of Fundamental Rights of the European Union.

2.4 To uphold the rule of law, a State must comply with obligations binding on it under international law, which in turn include binding trade union rights and freedoms.

3.Ballots: 50% turnout requirement (Clause 2)

3.1 The government appears to use as its starting point: ‘Currently, in order to take industrial action, a trade union is required to ballot all of its members affected by the dispute’
[2]
. That is wrong. The trade union is required to ballot all its members who it is reasonable for it to believe will be called to take part in the action
[3]
.

3.2 No adequate evidence is presented as to the need for thresholds, as identified by the Regulatory Policy Committee in its rating of the BIS consultation on ballot thresholds in important public services (and in its rating of the two other BIS consultations associated with the Bill) as ‘not fit for purpose’
[4]
. The measure is simply designed to make it more difficult for unions to organise industrial action, particularly on a national scale.

3.3 If the government was serious about increasing participation in trade union ballots it would permit safe and secure electronic and workplace balloting.

3.4 The ILO’s Committee of Experts has ruled that ‘the ballot method, the quorum and the majority required should not be such that the exercise of the right to strike becomes very difficult’
[5]
and that, where a ballot is required, States must ensure that ‘…account is taken only of the votes cast, and that the required quorum and majority are fixed at a reasonable level..,’. Clause 2 fails to meet these standards. It fails: (i) to take account of the totality of the balloting method in the United Kingdom – most notably, the requirement for a fully postal secret ballot, but also other requirements such as the requirement of a pre-ballot notice; and (ii) to confine the consideration only to votes cast.

3.5 The ILO’s Committee on Freedom of Association has recently considered the requirements of Australian legislation
[6]
which, like Clause 2 of the Bill, imposes a requirement for at least 50% of the employees ‘on the roll of voters’ to vote in the ballot. The Committee on Freedom of Association found that this requirement was likely to be ‘excessive’.
[7]

3.6 Of seven European countries in respect of which information has been obtained, none imposes a percentage turnout requirement. The countries are France, Spain, Belgium, Ireland, Sweden, Norway and Finland.

3.7 Compliance with international law obligations, and the law and practice in other States, are important factors in determining whether a State has complied with Article 11 of the European Convention. Given that the turnout requirement applies to a primary, central aspect of trade union activity
[8]
, the State’s margin of appreciation will be reduced. It is likely that the 50% turnout requirement is unlawful.

Ballots: 40% support requirement in important public services (Clause 3)

4.1 The ILO’s Freedom of Association Committee has held that the right to strike may be restricted or prohibited only in essential services, and then only ‘in the strict sense of the term’. ‘Essential services’ are those where interruption ‘would endanger the life, personal safety or health of the whole or part of the population’
[9]
. The government is creating its own very different standard of what it calls ‘important public services’, which are to be defined by reference to what the government perceives to be adverse impact on the public. Not only is this so loose and vague a definition as to be unworkable, it also fails to comply with the requirements of international law. As previously, the percentage threshold is also not confined to votes cast. There are also no compensatory measures as required by the ILO. A measure similar to the additional support threshold is also not found in any of the seven European countries in respect of which information has been obtained
[10]
. In those countries, where there are special rules applying to strikes in what may be described as ‘essential public services’, they are confined to civil servants exercising public authority
[11]
, or ‘safety work’ or ‘essential services’
[12]
. In France, in the transport sector, there is a requirement for employees whose presence is ‘directly necessary’ for the provision of the service to give 48 hours’ notice of their intention to take industrial action.

4.2 The additional support threshold disregards the clear requirements of international law, including in relation to Article 11 of the European Convention for the reasons given at paragraph 3.7 above, and is therefore unlawful.

4.3 Of the six categories of so-called ‘important public services’ identified in Clause 3 of the Bill, two were not referred to in the Conservative manifesto at the 2015 General Election: ‘decommissioning of nuclear installations and management of radioactive waste and spent fuel’ and ‘border security’.

4.4 The Regulatory Policy Committee condemned the BIS consultation on ballot thresholds in ‘important public services’, as ‘not fit for purpose’. The Regulatory Policy Committee determined that: (i) BIS should have provided a discussion of options for alternatives to a threshold; (ii) the Impact Assessment accompanying the consultation did not provide a clear enough basis for consultation; (iii) BIS’ description of the ‘problem’ as ‘important public services can have far reaching effects on significant numbers of ordinary people’ was ‘extremely limited’ and the Committee expected ‘..more evidence/discussion on this point for a measure of this kind eg better assessment of the costs and disruption causes, and its impact on the economy’; (iv) BIS’ estimated percentage reduction in strikes of 65% lacked sufficient evidence; (v) there was a failure to assess the impact of the threshold on levels of industrial action short of a strike; (vi) the impact of the 50% turnout requirement and the additional support threshold in ‘important public services’ should be considered separately; and (vii) further analysis ‘would be useful’ as to how the restrictions on strikes would impact on income distributions.

4.5 In any event, there is far too much uncertainty and vagueness of expression as to how the additional support threshold is to operate. It will apply to those entitled to vote in the ballot who are ‘normally engaged’ in the ‘provision of important public services’ and ‘…activities that are ancillary….’. With the wide variety of employment relationships in the United Kingdom, it is impossible to see how a threshold of ‘..normally engaged..’ can be interpreted in a clear and consistent way without protracted and expensive litigation. For workers working in an ‘important public service’, defining the boundary between those who will be covered by the additional support threshold and those who will not will, in any event, be an enormously difficult task. It will certainly not be achieved by the current version of Clause 4. Likewise, it will very often be the case, for industrial action to be organised in an ‘important public service’, that some workers will be covered by the additional support threshold and some will not. Clause 4 would need to be clear as to the circumstances in which the additional support threshold would apply to such a ‘mixed’ balloting constituency. Whilst the matter is canvassed in the BIS consultation, no adequate solution is proposed, and it is not referred to in Clause 4 of the Bill The BIS consultation on ‘ballot thresholds in important public services’ gives no confidence whatsoever that these matters will be resolved. There is every prospect that the additional support threshold will be unworkable.

5.Further industrial action measures: Information to be included on voting paper (Clause 4), Information to members etc about the result (Clause 5), Information to Certification Officer about industrial action etc. (Clause 6), Two weeks’ notice to be given to employers of industrial action (Clause 7) and Expiry of mandate for industrial action four months after the date of the ballot (Clause 8)

5.1 We endorse the position expressed by the TUC that the existing procedural obligations in relation to industrial action are excessive and disproportionate. These additional procedural obstacles contribute further to the totality of the restrictions imposed on the right to strike. The Government acknowledges, for example, in its European Convention Memorandum that the expiry of the ballot mandate after 4 months engages Article 11 of the European Convention. Contrary to the view expressed in that Memorandum, we believe that the expiry of the ballot mandate after 4 months is not justified under Article 11 of the European Convention and, like the other additional measures, is likely to be unlawful.

5.2 The description of the matters in issue in the trade dispute to be included on the voting paper must be a ‘reasonably detailed indication’
[13]
. That is not only unclear, but also internally contradictory. Where there is to be industrial action short of a strike, the voting paper must specify the ‘type or types of industrial action’
[14]
. It is impossible to know with certainty what fulfilment of that obligation would require. These intricate obligations will be used by employers as the legal grounds for challenges in the courts. Not only are they are unworkable, they will also inevitably lead to protracted and expensive litigation.

5.3 These additional measures serve only two purposes: (i) imposing additional administrative burdens on trade unions; and (ii) making it easier for employers to challenge trade unions’ legal immunity for organising industrial action. The Certification Officer is an officer appointed by the government and there is no possible justification for a requirement to pass information concerning industrial action to him/her. Employers would simply have 14 days, instead of 7, following notification of industrial action to prepare their legal case and seek an injunction to restrain the industrial action. These measures are oppressive.

6.Union supervision of picketing (Clause 9)

6.1 The ILO’s Freedom of Association Committee has ruled that the right to picket should only be interfered with where the restriction is ‘designed to protect public order or to present threats being made to workers who continue to work during the dispute
[15]
’. The numerous additional obligations associated with the requirement to appoint a picket supervisor – to pass their name and contact details to ‘the police’, providing a letter of authority, the supervisor having to be present (or readily contactable) while the picketing is taking place and the requirement to wear a badge, armband or other means of identification – do not satisfy this test. Nor are they consistent with the guidelines on freedom of association and peaceful assembly published by the Venice Commission
[16]
. The right to picket is also protected by Articles 10 (freedom of assembly) and 11 (freedom of association) of the European Convention, with Article 14 also potentially being engaged. The European Convention on Human Rights Memorandum accompanying the Bill does not even acknowledge (as is undoubtedly the case) that the picketing aspects of the Bill engage Article 10, as well as Article 11, of the European Convention. None of the seven European countries in respect of which information has been obtained singles out picketing for treatment different from other forms of protest. In the United Kingdom, it is only trade unions which are to be subject to these additional requirements – not other bodies which organise protests. The requirements are therefore discriminatory, and are unlawful.

6.2 It is not realistic to expect trade unions to have to comply with obligations which exceed considerably recognised international standards. Because picketing can only (lawfully) take place ‘at or near’ a member’s place of work
[17]
, there is the potential for separate picketing to take place at each workplace where there are members involved the dispute. In a large dispute, the number of picket supervisors required could easily run into the thousands. The new obligations would be triggered whenever a union ‘organises or encourages its members to take part in ‘picketing activities. Employers will no doubt argue that members are encouraged to take part in picketing activities on the basis of the activities of union officials as agents. The union may well not even know where each picket is to take place. The union or the picket supervisor will be required to ‘tell the police’ certain information and be ‘readily contactable’. It is impossible to tell who ‘in the police’ the union or picket supervisor is required to give this information to, and in what form. The requirements are therefore likely to be unworkable.

6.3 The picketing provisions, and the matters referred to in the BIS consultation on tackling intimidation of non-striking workers, are simply part of the end product the Government hoped the Carr review
[18]
would justify. But it didn’t. The Conservative Party’s press release of 18 July 2014 setting out its plans to change the law on picketing led Bruce Carr QC himself to conclude ‘…The proposal to reform picketing laws appeared to me to fall squarely within the scope of the ‘Terms of Reference’ and in my view made it difficult for the Review to operate in the area without being seen as partisan.’ The catalyst for the Carr review was the INEOS dispute at Grangemouth. Bruce Carr QC’s conclusion, from the evidence available to him, was that ‘….there is no evidence to suggest that these protests were anything but peaceful'.

6.4 The government seemingly relies on the evidence to the Carr review. That amounted to 15 responses which the review team considered ‘substantive’, of which only nine were to be regarded as ‘primary evidence’. Even now, the government is calling for ‘further evidence’ recognising the paucity of the ‘evidence to date’. The government’s evidence base for considering changes to the law governing wider protests seems to be limited to the unsubstantiated allegations made by a minority of Police Forces as reported by the Association of Chief Police Officers and quoted at paragraph 6 of the consultation. In fact, ACPO’s basic position was that no change was required, and that existing criminal law was adequate.

6.5 Our criticisms of the provisions concerning picketing (and the further measures proposed by the government in the BIS consultation on ‘Tackling intimidation of non-striking workers’) are echoed by the Regulatory Policy Committee which rated that consultation ‘not fit for purpose’. The Committee, considering not only the proposals already contained in the Bill but also the government’s proposals for further reform, concluded that the ‘description of the problem’ was ‘weak and must be substantiated’ and that ‘there is little evidence that there will be any significant benefits arising from the proposal’.

6.6 The picket supervisor would have to show the letter of authority not only to the police, but also ‘to any other person who reasonably requires it’. In theory, that might be argued to include not only employers but also journalists and passers-by. The requirement to wear an armband or badge, and for the picket supervisor to identify themselves, carry unnecessarily authoritarian connotations. These requirements will not make a significant contribution to public order. They are simply oppressive. Furthermore, so far as the police are concerned, it is impossible to see how these measures are anything other than a waste of their time.

7.Opting in by union members to contribute to political funds (Clause 10) and Union’s annual return to include details of political expenditure (Clause 11)

7.1 It is important to have in mind the ambit of the definition of ‘political objects’. That definition is not confined to donations and contributions to political parties and candidates. It also includes expenditure ‘..in connection with the registration of electors..’ and production of material designed to persuade people to vote for or against political parties or candidates
[19]
.

7.2 Political action is recognised by the ILO as a legitimate and protected means of protection of trade union members’ interests. The requirements of Clauses 10 and 11 of the Bill follow on from the restrictions on trade union campaigning expenditure imposed by Part II of the Transparency of Lobbying, Non-Party Campaigning and Trade Union Administration Act 2014. The right to free elections is given ‘foundational’ status under Article 3 Protocol 1 to the European Convention, which operates alongside the protection of freedom of expression afforded by Article 10 of the European Convention which in turn complements Article 11 in this area. And yet the requirement to ‘opt in’ would operate in the most intrusive way: it would be applied to all (including existing) trade union members, members who had previously opted in could opt out at any time and trade unions would only have three months from the date the Act came into to force to obtain written authority (not by electronic means) from existing members (and renew it in five years’ time). The union would further be subjected to intricate reporting requirements concerning its political expenditure to an officer appointed by the government. Those requirements would apply to each item of expenditure where the total annual expenditure exceeds £2000. The European Convention on Human Rights Memorandum issued by BIS does not even mention the engagement of Articles 10 and 11 in terms of the new requirement to ‘opt into’ contribution to a union’s political fund. The only conclusion would seem to be that BIS does not consider that Articles 10 and 11 are engaged by these provisions. If that is the case, the statement given by the Secretary of State on the face of the Bill for the purpose of Section 19(1)(a) of the Human Rights Act 1998 must be called into question. These provisions are likely to be unlawful.

7.3 No account is apparently taken of the fact that the measures will require amendment of trade unions’ rule books, or of the procedures unions have to go through to amend their rules, or of the fact that trade unions must have their political fund rules approved by the Certification Officer
[20]
. Trade unions’ rule books are currently required to contain provisions reflecting members’ current rights to opt out of making contributions to the political fund
[21]
. Sufficient time will need to be allowed prior to the implementation of these proposals to enable unions to make the necessary amendments to their rule books
[22]
, and to have them approved by the Certification Officer. It is unrealistic to expect trade unions to be able secure written ‘opt-in’ authority from their members by a date three months from the date of the Act come into force. That difficulty is compounded by a union not being allowed to use electronic means to obtain members’ authority. The requirement to identify each item of expenditure (where the total annual expenditure exceeds £2000) and its ‘nature’ in the union’s annual return will be virtually impossible to comply with – not least because expenditure will often fall into more than one category. These arrangements are going to be unworkable.

7.4 Each of the measures in relation to unions’ political funds and expenditure is designed to make it less likely that union members will contribute to a union’s political fund, and as burdensome as possible for the union to report its political expenditure to an the Certification Officer who is appointed by the government. No corresponding measures are to be applied to other organisations making contributions to political parties or political activities. The measures are oppressive.

8.1 To the provisions concerning facility time in the public sector already contained in the Bill are to be added the government’s announcement on 6 August that the Bill is to be amended to include a ban on the collection of trade union subscriptions by check-off in the public sector. No Clauses for inclusion in the Bill have yet been provided.

8.2 ILO Convention No. 151 requires that the level of facilities to be made available to representatives is such ‘..as may be appropriate in order to enable them to carry out their functions promptly and efficiently’
[23]
. Yet the government is reserving to the Minister the power to curtail facility time whenever the Minster ‘considers it appropriate to do so’. The reserve powers will be capable of overriding existing statutory and contractual rights and rights under collective agreements, and may have retrospective effect. Unjustified retrospective interference with pre-existing rights is prohibited by Article 1 Protocol 1 of the European Convention. Public sector status is likely to amount to a protected characteristic for the purpose of the Article 14 of the European Convention and it is the public sector that is singled out for discriminatory treatment when it comes to facility time. There is every prospect that the measures contained in Clauses 12 and 13 are unlawful when matched against these international standards. Further, the inclusion of health and safety representatives is likely to infringe health and safety obligations under EU law
[24]
.

8.3 No account is taken of the impact of the facility time (or any other) provisions on public services in the devolved administrations where the Bill is so bitterly opposed anyway. The information the Minister may require public sector employers to publish is absurdly detailed and includes the number of relevant union officials within specified categories, the total amount spent in a specified period paying union officials for facility time, the percentage of the employer’s total pay bill for a specified period spent on paying for facility time, the percentage aggregate amount of facility time taken by officials in a specified period and information as to facilities provided by an employer for use by relevant union officials in connection with facilities time. It is difficult to imagine how a public sector employer would be able to comply with these obligations without deploying considerable resources.

8.4 We emphasise (i) the level of detail potentially required of public sector employers under the publication requirements (with no apparent reason given as to why headline figures would not suffice); (ii) the Minister’s subjective ability to curtail trade union facilities without reference to what may reasonably be required; and (iii) the ability of the Minister, when exercising the reserve powers (as matters stand, by negative resolution) to override existing rights under statute, contracts and collective agreements. On any analysis, these outcomes are oppressive.

9.Certification Officer: Investigatory powers etc (Clause 14), Enforcement of new annual return requirements (Clause 15) and Further powers where an enforcement order is made (Clause 16)

9.1 The Certification Officer’s role is to be transformed from that of an independent arbiter of disputes to that of a State-appointed investigator and enforcer. The power to require production of documents is triggered by the absurdly low, subjective threshold of when the Certification Officer ‘thinks there is good reason to do so’. The category of documents that can be required to be produced are any that ‘may be relevant to whether the trade union has failed to comply with a relevant obligation’. These requirements may be applied not only to a branch or section of a trade union, but also to ‘any person who appears to be in possession of them’. The Certification Officer will be able to exercise his powers in relation to non-compliance without receiving a complaint form a trade union member. These provisions offend the most basic principles of natural justice. The Certification Officer will have power to require the production of documents, on the basis of which he will be able to initiate an investigation, following on from which he will be able to decide (on the balance of probabilities) that a union has failed to comply with its obligations, and, if he decides that it has, make an enforcement order and impose a fine.

9.2 The European Convention on Human Rights Memorandum issued by BIS analyses the imposition of a fine in terms of compliance with Article 6 and Article 1 Protocol of the European Convention. We do not agree that the ability to impose a fine, which is effectively a quasi-criminal sanction, satisfies the requirements of Article 6 and Article 1 Protocol 1. There is also no mention in that Memorandum of how the Certification Officer’s other increased powers are likely to engage Article 6. There is every prospect that the enhanced powers of the Certification Officer are unlawful.

9.3 It is wholly unrealistic to expect a trade union ‘or a branch or a section of a trade union’ (or indeed ‘any person who appears to be ‘[in possession of the documents]’) to be able to produce ‘immediately’ to an authorised person the relevant documents (and explanation) that person may specify. It is also wholly unrealistic not to introduce further safeguards (beyond confidentiality), such as in relation to competence, independence and identity, for the investigators the Certification Officer may appoint from outside of his own staff, and for the persons the Certification Officer may authorise to act on his behalf for the purpose of the production of documents.

9.4 We emphasise: (i) the subjective decision-making on the part of the Certification Officer (an officer appointed by the government) which will be capable of leading to a union (or branch or section or ‘other person’) being compelled to produce documents ‘immediately’; (ii) that the union, section, branch or other person may additionally be required to provide an explanation in relation to the documents; (iii) that the Certification Officer will be able to exercise his powers in relation to relevant obligations without a complaint being made to him; and (iv) the way in which The Certification Officer will become investigator, prosecutor, adjudicator and enforcer . The role of the Certification Officer is to be transformed in a way which is oppressive to trade unions.

10.Power to impose levy (Clause 17)

10.1 And finally, trade unions may be required to pay a levy to the Certification Officer of an amount to be determined by the Certification Officer. The only seeming limitation on the amount of the levy to be determined by the Certification Officer will be the need for him to ‘aim ‘ to ensure that the total amount levied over any period of three years does not exceed the total amount of his expenses. The independence of the Certification Officer will be compromised. Despite the lack of analysis in the European Convention on Human Rights Memorandum published by BIS, Article 6 of the European Convention will be engaged. And trade unions will be paying themselves for the oppressive additional burdens to be imposed upon them.

October 2015

[1] European Committee of Social Rights, Conclusions XX-3 (2014), United Kingdom

[2] See paragraph 8 of the BIS Consultation on ballot thresholds in important public services, July 2015.